Distrify

Content Provider Terms of Use

Effective Date: 1st July 2016

The following Terms apply in respect of all video content made available through the Distrify service, and govern the relationship between you, the Content Provider (also referred to as Licensor in these Terms) and us, Distrify Media (Distrify). Please read these Terms carefully – they contain important information about our obligations toward each other. In uploading a film or otherwise making video content available on this service, you agree to be bound by these Terms, which create a legally binding Agreement between you and Distrify Media Ltd.

Definitions

Distrify Service: also referred to as the Service, shall mean the distrify.com website, the muvies.com website and any other website operated by the Distrify Group, as well as all supporting software, technology and other infrastructure, and all functionality and resources made available to you by Distrify.

Video-On-Demand (VOD): shall mean that method of exhibition of the Film, in which the consumer is licensed the ability to select the time and day of the exhibition of the Film, and the Film is then streamed or downloaded via the Internet to the viewing consumer within a specified period of time following the consumer’s selection and the consumer can then view the Film at that time or at a later point in time on the consumer’s personal devices only.

Transactional Video-On-Demand: also referred to as TVOD, shall mean that method of exhibition of VOD in which the consumer is required to pay a separate fee to obtain a limited right to view the Film that may be accessed and viewed, but not downloaded or further copied, subject to express limitations: viewing must commence within 30 days, and availability ceases 48 hours after first access.

Advertising supported Video on Demand, shall mean that method of exhibition of VOD in which the consumer is not required to pay a separate fee to obtain a right to view the Film. Distrify may attach pre-roll or mid-roll advertising to the Film, that may be accessed and viewed by the customer, but not downloaded or further copied.

Download-to-Own: shall mean that method of VOD where the consumer is licensed the right to download and store a copy of the Film on the consumer’s hard drive, cellular phone, or other storage receptacle for an indefinite period of time and the consumer is licensed the right to burn a hard-copy (e.g. DVD) of the Film after having first received a copy of the digital file of such Film. The file containing the Content may be downloaded once, and the customer has a limit of 30 days in which to make the download.

Film(s): also referred to as Content shall mean any film(s) made available through the Service including but not limited to the product made available for sale, trailers, extras and/or other non-digital merchandise.

Films: These Terms shall apply to each of your Film(s). We will enable the Film(s) to be available for viewing through our Service to all customers within the Territory solely for the purposes set forth in these Terms. The Territory shall consist of the whole world excepting any territorial restrictions you specify: it is your responsibility to inform Distrify in writing to [email protected] (the subject field of the email should read “geo-blocking”). Where you use the Distrify geoblocking tools on the Service, you take responsibility for ensuring that you only make Film(s) available in territories to which you have the necessary rights.

Licence Rights: Subject to these Terms, you hereby grant Distrify Media a non-exclusive license for the royalty free exploitation of Transactional Video on Demand rights within the Territory during the Term.

Term: this Agreement shall last for a duration of two years from commencements and shall renew automatically after this time unless you cancel the renewal giving at least 60 days’ notice.

It is a condition of these Terms that any Content sold through Distrify must not be made available to non-paying customers other than through the Distrify Service. For this reason, we require you to grant us an exclusive licence to AVOD rights to any Content you make available through Distrify for the duration of the Term applicable to that Content, and you hereby grant Distrify exclusive AVOD rights to all Content you make available for sale through Distrify.

With regard to TVOD sales, you may, through the System, allocate a price at which you wish your Film(s) to be made available online, however Distrify Media shall retain the right to specify an alternative price at its sole discretion.

We shall have the right to withdraw any Film from the Service we believe, in our sole reasonable discretion, that the continued exploitation of the Film is likely to cause material or financial damage to Distrify or our reputation, or that there is doubt that the rights necessary for our royalty-free exploitation of the film are in place. You shall not be entitled to any rights or remedies as a result of such withdrawal.

Representations and Warranties

Except as otherwise expressly set forth in these Terms, neither party makes any other representations or warranties to the other party. You undertake, represent and warrant that:

you have the full right, authority and ability to enter into and perform this Agreement and to give the warranties and representations herein contained;

you understand and acknowledge that it is your responsibility to ascertain whether Distrify is suitable for your purposes and that the Service is provided on an ‘as is’ basis;

you have the full right, authority and ability to grant the License Rights (including all applicable literary, artistic, musical and/or intellectual property rights) for the royalty free exploitation of the Film(s) per this Agreement;

you will not use the Service to make available any Films(s) or other content which contain any illegal, discriminatory or obscene content. Where your Film(s) contain content which is age restricted content, you must restrict access to those old enough to view the content by logging in to your account and using Distrify’s age restriction tools, or otherwise advise Distrify in writing of the necessary age restrictions;

there are no liens, charges, restrictions or encumbrances or any litigation, whether current, pending or threatened against you, which may affect or impinge upon Distrify’s exploitation of the Licensed Rights;

the exercise of the Licensed Rights will not infringe any rights of any third party, including copyright, trademark, unfair competition, contract, defamation, privacy or publicity rights;

you have cleared all rights to and embodied in the Film(s) necessary for Distrify to exploit the Licensed Rights in the Film(s) in accordance with these Terms, including, as applicable, all rights in copyright, the rights to reproduce, distribute, perform, display and prepare derivative works and the so-called mechanical and synchronization rights for the sound recordings and musical compositions embodied in the Films.

you agree only to use this Service for the commercial exploitation of your Film(s) and not for any purpose not explicitly permitted by these Terms. You agree not use the Service to advertise any product not offered for sale through the Service unless by express agreement in writing with Distrify;

you agree not to use the Service to link to any web page which does not utilise the Service.

you shall not, and shall not allow any third party to copy, market, distribute, export, translate, reverse engineer, transmit, merge, modify, transfer, adapt, loan, rent, lease, use, assign, share, redistribute, host, hyper-link to, frame or store all or any portion of the Service, except as explicitly set forth herein;

where you use the Service to make Film(s) available for purchase or viewing through any website you control, the Service shall be promoted no less favourably than any other viewing option for that Film offered on that site;

unless otherwise agreed in writing between Licensor and Distrify, any Film(s) you make available through the Service shall not be offered to the public on a free to view basis, or at a lower price, through any other service or means (with the exception of terrestrial television);

Distrify undertakes, represents and warrants that:

we shall take all commercially reasonable measures and comply with industry standards to maintain the Service and shall immediately remedy any faults insofar as such action is commercially practicable. Distrify shall ensure a minimum of 98% temporal availability and will post notice of any scheduled downtime of the Service and a timeline for the reinstatement of the Service on its website, however, we make no further warranty as to continuity of service and you understand and accept that the service is provided on an ‘as is’ basis;

we has the full right, authority and ability to enter into and perform this Agreement and to give the warranties and representations herein contained;

we shall not use the Film(s) except as set forth in this Agreement;

there are no claims, liens, charges, restrictions or encumbrances or any litigation, whether current, pending or threatened against it, which could impact on our ability to fulfil its obligations hereunder, including but not limited to its payment obligations;

we shall not, and shall not permit any third party to exploit any Film or any part of the Film(s), except as explicitly set forth herein.

Indemnification and Limitation of Liability

Subject to the provisions of clause 4.b, you agree to indemnify, defend and hold Distrify, its affiliates, officers, directors, employees, agents, successors and assigns (each, a Distrify Indemnitee) harmless from and against any and all direct and indirect losses (including loss of profits, consequential losses, loss of goodwill, liabilities, damages and costs and all related costs and expenses, including reasonable legal fees) (collectively, Losses) arising out of or relating to: (i) any claim alleging that any Film(s) or other content you make available through the Distrify Service infringe upon the intellectual property rights of any third party, (ii) your failure to comply in any material respect with applicable law; (iii) any breach of the provisions of these Terms and Conditions; and (iv) any act or omission by you or any of your affiliates, officers, directors, employees or agents which could reasonably be foreseen to cause any Losses to a Distrify Indemnitee. Subject to clause 4.b of these Terms, Distrify agrees to indemnify and hold you indemnified from and against, reasonable, foreseeable Losses arising out of our breach of any of the provisions of clause 4.c of these Terms.

Except as expressly stated in clause 4.c Distrify shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensor (or any person claiming under or through the Licensor), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: special damage even if Distrify was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data, provided that this clause 4(b) shall not prevent claims for loss of or damage to the Licensor’s tangible property that fall within the terms of clause 4(b) or any other claims for direct financial loss that are not excluded by any of these categories inclusive of this clause 4(b), the total liability of Distrify, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to 1 times the amount of gross profit collected by us in respect of the services provided to you giving rise to the claim in the 12 months preceding the date of claim. These sections 4.b and 4.c of these Terms constitute each party’s sole and exclusive remedy in any action for damages, restitution or any other claim for monetary relief. The indemnified party shall notify the other promptly in writing of the claim, mitigate losses to the fullest commercially practicable extent, provide reasonable assistance in connection with the defence and/or settlement thereof (at the other’s expense), and permit the other to control the defence and/or settlement thereof. No claims will be entertained after 12 months have elapsed from the day on which the event giving rise to the claim took place; and the Licensor agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) Distrify shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.

The exclusions in clause 4.b shall apply to the fullest extent permissible at law, but Distrify does not exclude liability for death or personal injury caused by the negligence of Distrify, its officers, employees, contractors or agents; fraud or fraudulent misrepresentation; breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or any other liability which may not be excluded by law.

Except where Distrify is in breach of these Terms, you agree not to hold us liable for any banking or credit card charges which you may incur as a result of your use of the Service, and you further agree to indemnify us against any banking or credit card charges we may incur in respect of any customer activity in relation to your Content, including, but not limited to, chargeback and refund fees, and you permit us to recover these from you by charging you in respect of these using your payment details on your user profile.

All dates supplied by Distrify for the provision of Services shall be treated as approximate only. Distrify shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

All references to “Distrify” in this clause 4 shall, for the purposes of this clause and clause 12 only, be treated as including all employees, subcontractors and suppliers of Distrify, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 12.

Grant and Reservation of Rights and Intellectual Property

You hereby grant Distrify the right to use any names, logos, trademarks, likenesses and artwork relating to the Film(s) (limited to those you have made available to Distrify) for the purposes of promoting the Film(s) and/or our Service and to list you, using appropriate tradename(s) and trademark(s), in a list of clients.

Each Party owns and shall retain all right, title and interest in its respective (a) Films, trade names, logos, trademarks, service marks, trade dress, copyrights, patents, patent applications, trade secrets and other proprietary rights including, without limitation, those in its Confidential Information, and (b) any Confidential Information, text, graphics, audio, images, photographs, illustrations, bar codes, designs, ideas, processes, methodologies, forms and formats, materials, software, Internet domain names, arrangement of content, distinctive and original layout and presentation of Films and web pages, and any derivative works or enhancements to any of the foregoing (“Property”). Neither Party shall acquire any right, title, or interest in the other’s Property, except for the limited use rights expressly set forth in these Terms. All rights not specifically licensed herein are withheld and expressly reserved by each party. This clause is subject to the Confidentiality provisions detailed in clause 10 below, and the Indemnity provisions of clause 4, above.

Payment Provisions and Delivery:

Transactional Video on Demand: unless otherwise agreed in writing, in consideration for the Licensed Rights granted herein, Distrify shall pay to you 85% of Payable Receipts (the “Licensor Share”). “Payable Receipts” shall mean one hundred per cent (100%) of all monies received by Distrify in respect of sale of the Films through Transactional Video on Demand, after deduction of all applicable taxes (e.g. VAT or Sales Tax), and a transaction fee of £0.60. We will transfer the Licensor’s Share to you by wire transfer (or similar method) at the next quarterly pay run following your withdrawal request, provided that the sum due to you exceeds the minimum payment threshold as advertised on our payment pages of our website from time to time, currently £50 Sterling.

Advertising based Video on Demand: unless otherwise agreed in writing, in consideration for the Licensed Rights granted herein, Distrify shall pay to you 50% of Payable Receipts (the “Licensor Share”). “Payable Receipts” shall mean one hundred per cent (100%) of all monies received by Distrify in respect of revenues generated through pre-roll, mid-roll and/or post-roll advertising attached to the feature version of the Film(s) only, which are the subject of the Licensed Rights, after deduction of all applicable taxes (e.g. VAT or Sales Tax) and reasonable costs of delivery (which shall be limited to streaming costs only). We will transfer the Licensor’s Share to you by wire transfer (or similar method) at the next quarterly pay run following your withdrawal request, provided that the sum due to you exceeds the minimum payment threshold as advertised on our payment pages of our website from time to time, currently £50 Sterling.

You shall be liable for any charges incurred by Distrify in making your payment to you including, but not limited to bank charges. You will be notified of any such charges prior to your payment being made.

You agree to provide digital files to the Film(s) (including trailer and feature) which meet our required encoding and quality settings as specified to you at the time of contracting. Please take care to ensure that you only upload or otherwise provide suitable files – we reserve the right to levy a reasonable charge against you to cover any costs we incur due to your attempts to upload flawed or unsuitable files to our Service, and you permit us to charge this against your account. These charges may be subject to change, you will be notified through this website of any amendments.

WE RESERVE THE RIGHT TO LEVY A MAINTENANCE FEE OF £5.00 PER MONTH ON INACTIVE ACCOUNTS. AN INACTIVE ACCOUNT IS ONE THAT IS AT LEAST TWO YEARS OLD AND HAS MADE ONE OR FEWER SALES PER MONTH IN ANY CONSECUTIVE THREE-MONTH PERIOD AFTER THE FIRST YEAR. THE FEE MAY BE APPLIED IN RESPECT OF ANY CALENDAR MONTH WHERE THE ACCOUNT IN QUESTION MAKES ONE OR FEWER SALES.

Governing Law, Jurisdiction and Dispute Resolution: These Terms shall be construed and interpreted pursuant to the Law of Scotland, and the courts of Scotland shall have exclusive jurisdiction. The parties shall attempt to resolve any dispute arising out of or relating to this contract (including non-contractual disputes or claims) through good faith negotiations between directors of the parties, who have authority to settle the same. Nothing in this clause shall be construed as prohibiting a Party or its affiliate from applying to a court located in Scotland for relief.

No Waiver: The failure or neglect of either party on any occasion to enforce any provision of these Terms shall not be deemed a waiver or prevent such party from enforcing the provision or any other provision upon that or any other occasion.

Entire Agreement: Unless otherwise agreed in writing and signed by both parties, these Terms shall constitute the entire agreement between the Parties. You acknowledge and accept that you have not relied on any warranties or other advice not contained in these Terms in agreeing to be bound by these Terms. You also agree to be bound, where applicable, by our Customer Terms, Supporter Terms, Privacy Policy and Copyright Policy.

Confidentiality: In using this Service, you agree not to disclose any details about this Service and/or your use of it (other than the fact that you use this Service) to any third party and you agree not to use any know-how or information acquired through your use of this Service in any other business activity now, for the duration of this Agreement and for a period of 2 (two) years from the termination of this Agreement. You agree not to make any PR or other press announcements about your use of this Service without our written consent. Please note that the indemnification provisions of clause 4.a of these Terms apply to this clause.

Rights of Third Parties: Notwithstanding any other provision of these Terms, these Terms are not intended to, and do not, give any person who is not a party to it any right to enforce any of its provisions. Nothing in these Terms shall be construed so as to create any third party beneficiary hereunder. Nothing under these Terms shall entitle any third party to any remedies against Distrify, at law, in equity, or otherwise, including, without limitation, the right to seek or obtain relief by interdict or injunction against Distrify’s distribution of the Film(s).

Force Majeure: Distrify will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, war, governmental action, labour conditions, earthquakes, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, DNS spoofing attacks and/or other hacking attacks of a similar nature (provided it has taken commercially reasonable steps to prevent such hacking attacks), or any other cause which is beyond Distrify’s reasonable control.

Severability: If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

Amendment: these Terms may be modified from time to time at Distrify’s discretion. You are advised to check regularly for updates, which will be notified through this website. Your continued use of the Service one calendar month after any such amendments have been so notified shall be construed as your acceptance to be bound by these Terms in their amended form. Where amendment to these terms has a substantial material impact on your use of the Service, you may cancel your use of the Service within 1 calendar month of notification of said amendments without penalty.

Survival: The rights and obligations contained in clauses 3 (Warranties); 4 (Indemnification and Limitation of Liability); 5.b (Intellectual Property); 10 (Confidentiality) and 15 (Survival) will survive any termination or expiration of the agreement between the Parties to this Agreement created by your acceptance of these Terms.

Distrify Media is the trading name of Distrify Media Limited, incorporated under the Companies Act (Company Number SC491140) and having its Registered Address and correspondence address at 2 Dawson Road, Glasgow, G4 9SS.